The dark side The Economist November 26th 2016

Barack Obama has bequeathed his successor fragile legal rules for fighting terrorism

INTERVIEWED by German reporters this month, President Barack Obama was

asked whether his failure to close the Guantánamo Bay prison camp, or his drone
strikes against terror suspects, marked his presidency’s “darkest moment”. It was a
very European question, of the sort that leaves many American politicians spluttering
with impatience. Mr. Obama offered a downbeat reply. He expressed pride at ending
all use of torture and reducing Guantánamo’s population to 60 detainees. He boasted
of creating terror-fighting rules that are “much more disciplined and consistent with
the rule of law and international norms”—including the obligation to minimise
casualties when using drones, while still allowing strikes in countries unable to
capture terrorists. He did not boast of leaving Donald Trump a solid legal foundation
for using force against Islamic State (IS), because he cannot. Pondering the
dilemmas of terrorist-fighting, Mr. Obama mused aloud: “How do we make sure that
we don’t change, even as we protect our people?” He did not answer his own
question.

Such ambiguities alarm those who remember the last time America was accused of
being a rogue superpower. John Bellinger was chief legal adviser to the State
Department from 2005 to 2009 and before that a top lawyer at the National Security
Council, putting him at the centre of the toughest Bush-era debates about the war on
terror. In a lecture to a high-octane, bipartisan audience at the Supreme Court on
November 20th, organised by the Salzburg Global Seminar, Mr. Bellinger recalled
sharp exchanges with Bush administration colleagues. Hawkish peers objected when
he argued that America should not advocate policies that might provide cover for
countries like Russia or China to flout international laws on the use of force. They
scoffed when he told them that unilateralism risked inflaming public opinion in allied
countries. Such colleagues told Mr. Bellinger: “It doesn’t matter what other countries
think; they don’t vote for us.” But foreigners do get a vote, Mr. Bellinger noted: every
time they decide whether to share intelligence, extradite suspects or fight alongside
Americans. In the Bush era, he recalled, some European spy agencies moved from
“co-operation plus”, meaning that they offered more information than the CIA
requested, to more minimal help. Allies sought assurances that run-of-the-mill
criminal extraditions would not see suspects sent to Guantánamo.

In large part because of partisan gridlock on Capitol Hill, the Obama administration’s
campaign against the fanatics of IS rests on what Mr. Bellinger calls “a very strained
legal interpretation” of an Authorisation for Use of Military Force (AUMF) from 2001in
which Congress approved military action against al-Qaeda, and a second from 2002
permitting combat in Iraq. Team Obama repeatedly urged Congress to pass a new
AUMF, but Republicans called the White House draft too restrictive and Democrats
found it too permissive. So Mr. Obama’s lawyers fell back on arguing that America
may fight IS because it is a descendant of al-Qaeda. It may be only a matter of time
before an alleged terrorist challenges his detention on the ground that he has no link
to al-Qaeda; and at that point lawyers may be left citing a president’s powers to
defend America, a blunt legal instrument. Into this confusion marches President-elect
Trump. To weigh the risks that he poses to global trust, recall the (unfair) caricature
of Bush the Cowboy that stoked such enduring rage in Europe and beyond: namely
that for all his talk of promoting democracy, the Texan really started wars to steal
Middle Eastern oil, and ordered enemies tortured in a spirit of vengeance. Now
consider that this caricature of Mr. Bush was Candidate Trump’s campaign platform.
Mr Trump declared that America should not have invaded Iraq, but once there should
not have left without seizing Iraqi oilfields: “You know, it used to be to the victor
belong the spoils,” he grumbled. At election rallies Mr. Trump drew cheers by
promising to bring back waterboarding, a mock execution by simulated drowning, and
“a hell of a lot worse”. Torture works, he asserted, and “if it doesn’t work, they
deserve it anyway for what they do to us.” Trump-defenders often counsel against
taking him literally. Sure enough, at a meeting with the New York Times on
November 22nd, Mr. Trump abruptly announced that he now doubts that
waterboarding is so useful, after hearing James Mattis, a retired Marine Corps
general, say that torture wasn’t useful, during an interview for the post of defence
secretary.
Europe dusts off the “Wanted” posters

Team Trump contains outspoken advocates of harsh interrogations. Mr. Trump’s

nominee for attorney-general, Senator Jeff Sessions of Alabama, is one of just five
senators to oppose a pair of laws on interrogation and torture passed in 2005 and in
2015. With those laws Congress forbade cruel and degrading treatment of detainees,
then banned American troops or spooks from using any technique not found in the
Army Field Manual on Human Intelligence Collector Operations. Explaining his
opposition, Mr. Sessions said that sticking to methods in a manual allows the enemy
to prepare. Mr. Sessions has spoken against granting terrorist detainees the legal
rights of criminal suspects, including access to a lawyer. In 2014 Representative Mike
Pompeo of Kansas, a Republican named by Mr. Trump to head the CIA, condemned
a Senate report on CIA interrogations, saying it put “American lives at risk” by
revealing techniques that he called “within the law”. Formidable legal and political
barriers now exist to anything resembling torture by Americans. But no law stops
detainees being sent overseas for questioning. President Trump can undo Mr.
Obama’s drone rules and his ban on the CIA from operating detention sites. Mr.
Trump has promised to fill Guantánamo with “bad dudes”, and seems tempted to let
Russia commit war crimes in Syria, in pursuit of IS. If pious appeals do not move the
next president, try this. America is a brand. Trash it, and the costs of every global
transaction will rise. A dealmaker cannot want that.